The Universe of Discourse

Thu, 21 Apr 2022

Pushing back against contract demands is scary but please try anyway

A year or two ago I wrote a couple of articles about the importance of pushing back against unreasonable contract provisions before you sign the contract. [1: Strategies] [2: Examples]

My last two employers have unintentionally had deal-breaker clauses in contracts they wanted me to sign before starting employment. Both were examples I mentioned in the previous article about things you should never agree to. One employer asked me to yield ownership of my entire work product during the term of my employment, including things I wrote on my own time on my own equipment, such as these blog articles. I think the employer should own only the things they pay me to create, during my working hours.

When I pointed this out to them I got a very typical reply: “Oh, we don't actually mean that, we only want to own things you produced in the scope of your employment.” What they said they wanted was what I also wanted.

This typical sort of reply is almost always truthful. That is all they want. It's important to realize that your actual interests are aligned here! The counterparty honestly does agree with you.

But you mustn't fall into the trap of signing the contract anyway, with the idea that you both understand the real meaning and everything will be okay. You may agree today, but that can change. The company's management or ownership can change. Suppose you are an employee of the company for many years, it is very successful, it goes public, and the new Board of Directors decides to exert ownership of your blog posts? Then the oral agreement you had with the founder seven years before will be worth the paper it is not printed on. The whole point of a written contract is that it can survive changes of agency and incentive.

So in this circumstance, you should say “I'm glad we are in agreement on this. Since you only want ownership of work produced in the scope of my employment, let's make sure the contract says that.”

If they continue to push back, try saying innocently “I don't understand why you would want to have X in the written agreement if what you really want is Y.” (It could be that they really do want X despite their claims otherwise. Wouldn't it be good to find that out before it was too late to back out?)

Pushing back against incorrect contract clauses can be scary. You want the job. You are probably concerned that the whole deal will fall through because of some little contract detail. You may be concerned that you are going to get a reputation as a troublemaker before you even start the job. It's very uncomfortable, and it's hard to be brave. But this is a better-than-usual place to try to be brave, not just for yourself.

If the employer is a good one, they want the contract to be fair, and if the contract is unfair it's probably by accident. But they have a million other things to do other than getting the legal department to fix the contract, so it doesn't get fixed, simply because of inertia.

If, by pushing back, you can get the employer to fix their contract, chances are it will stay fixed for everyone in the future also, simply because of inertia. People who are less experienced, or otherwise in a poorer negotiating position than you were, will be able to enjoy the benefits that you negotiated. You're negotiating not just for yourself but for the others who will follow you.

And if you are like me and you have a little more power and privilege than some of the people who will come after, this is a great place to apply some of it. Power and privilege can be used for good or bad. If you have some, this is a situation where you can use some for good.

It still scary! In this world of giant corporations that control everything, each of us is a tiny insect, hoping not to be heedlessly trampled. I am afraid to bargain with such monsters. But I know that as a middle-aged white guy with experience and savings and a good reputation, I have the luxury of being able to threaten to walk away from a job offer over an unfair contract clause. This is an immense privilege and I don't want to let it go to waste.

We should push back against unfair conditions pressed on us by corporations. It can be frightening and risky to do this, because they do have more power than we do. But we all deserve fairness. If it seems too risky to demand fair treatment for yourself, perhaps draw courage from the thought that you're also helping to make things more fair for other people. We tiny insects must all support one another if we are to survive with dignity.

[ Addendum 20220424: A correspondent says: “I also have come to hate articles like yours because they proffer advice to people with the least power to do anything.” I agree, and I didn't intend to write another one of those. My idea was to address the article to middle-aged white guys like me, who do have a little less risk than many people, and exhort them to take the chance and try to do something that will help people. In the article I actually wrote, this point wasn't as prominent as I meant it to be. Writing is really hard. ]

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